Ruling Allows Governments to Wrest Property from Citizens
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In a 5-4 decision yesterday, the Supreme Court upheld the right of state and local governments to seize property from one private landowner and give it to another, as part of a project aimed at promoting economic development.
The ruling was a boon to developers and local officials, but it dealt a blow to property-rights advocates who had hoped the court would use the case to give a more forceful interpretation to the Constitution’s requirement that land taken by eminent domain be put to “public use.”
At issue was a move by authorities in New London, Conn., to seize 15 properties from owners who were unwilling to sell. They contended that the city’s general desire to stimulate the local economy by redeveloping several large parcels of land was not a sufficient reason to take property under the power of eminent domain. The argument failed in the Connecticut courts and, yesterday, the Supreme Court concurred.
Writing for the majority, Justice Stevens said that as long as local officials were not acting to benefit a specific developer or neighboring landowner, judges should not substitute their judgment for that of the local government. “We decline to second guess the city’s considered judgments about the efficacy of its development plan,” he wrote.
Justice Stevens quoted from a 1984 case in which the court wrote, “When the legislature’s purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of takings – no less than debates over the wisdom of other kinds of socioeconomic legislation – are not to be carried out in the federal courts.”
Justices Breyer, Ginsburg, Kennedy, and Souter joined in the majority opinion.
The dissenting justices accused the majority of, in effect, reading out of the Constitution the Fifth Amendment requirement that seized property be put to public use.
“Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner so long as it might be upgraded – i.e. given to an owner who will use it in a way that the legislature deems more beneficial to the public,” Justice O’Connor wrote in a dissent joined by Chief Justice Rehnquist and Justices Scalia and Thomas. Justice O’Connor rejected the majority’s contention that the court should defer to legislators and city officials about the necessity for taking the land. “Were the political branches the sole arbiters of the public-private distinction, the public use clause would amount to little more than hortatory fluff. An external, judicial check on how the public use requirement is interpreted, however limited, is necessary if this constraint on government power is to retain any meaning,” she wrote.
The court’s only African-American jurist, Justice Thomas, called the majority’s decision “dangerous.” He noted in a rare separate dissent that minorities are often uprooted in redevelopment efforts. “Urban renewal projects have long been associated with the displacement of blacks,” he wrote.
Lawyers who fight to uphold property rights were deeply disappointed and surprised by the ruling. “It’s up to the Supreme Court to stand up for the little guy, but they didn’t do it,” said John Whitehead, the director of a conservative civil rights organization, the Rutherford Institute. “It has great ramifications. What the court has done is redefine eminent domain and the 5th Amendment. It really is going to accommodate wealthy developers.”
Mr. Whitehead warned that if economic benefit were the only issue to be considered when seizing property, religious institutions could be vulnerable. “Churches and synagogues, they’re not tax-generating entities,” he said.
Mr. Whitehead said he was fascinated by the alignment of the justices. “This case here is an enigma,” he said. He noted that the justices who usually evince concern about individual and minority rights urged deference to other branches of government, and the justices who are often willing to defer to the political process, in this case, argued hard for the rights of individuals.
The attorney general of Connecticut, Richard Blumenthal, hailed the decision as a recognition of the wisdom of local control.
“The paramount principle is that local officials – and not the courts – should determine whether the taking of property serves a significant public interest,” Mr. Blumenthal said in a statement.
The lawyer who led the effort to defend New London’s land seizures said yesterday that the court’s ruling will bring hope to impoverished communities. “It’s a good day, not only for the city of New London. It’s a good day for all the economically depressed cities of America,” said Wesley Horton of Hartford. “Now, they’ve been given a road map about how to comply with the Fifth Amendment.”
Mr. Horton said the Supreme Court’s decision demonstrated that cities in economic distress that scrupulously follow an established process will have their takings decisions upheld in court. However, he said wealthier towns, such as Greenwich, Conn., could still face trouble as could officials who used the eminent domain power to favor one landowner over another.
Several legal analysts pointed to a concurring opinion filed by Justice Kennedy, in which he suggested that in future cases courts should look carefully at claims that the government was prompted to take land for reasons of cronyism.
An attorney for conservative groups such as the Institute for Justice and the Goldwater Institute, Clint Bolick, said he was “very disappointed” with the court’s ruling. However, he, too, said the justices left open some avenues to challenge specific land seizures. “The Supreme Court left the door open, if a government is especially clumsy or especially overzealous,” he said.
Mr. Bolick said he believes the fight will now move to state courts and legislatures, many of which offer landowners legal protections that go beyond the federal Constitution. He said many takings amount to “reverse Robin Hood” schemes that benefit the wealthy.
Similar concerns led some minority groups to back the Connecticut landowners. “It’s the politically powerful taking from minorities, the elderly, and the poor,” said Jason Freier, an attorney who submitted an amicus brief on behalf of the NAACP, the AARP, and some New Jersey community groups.
More than half a century ago, in a case involving the nation’s capital, the Supreme Court upheld the right to seize property to control urban blight. However, Mr. Freier complained that yesterday’s decision goes much further. “We’re taking property that everyone agrees is a functioning community. It just so happens somebody else is coming along and saying they’ll put something on this that will yield more taxes,” he said.
Not all property developers backed the city in the case decided yesterday. A lobbyist for the National Association of Industrial and Office Properties, Stephen Gallagher, said some developers support vigorous eminent domain powers, but others worry more about the erosion of property rights in the long run. “We’ve really got members on both sides of this debate,” he said.
The case decided yesterday did not deal with the issue of how much the landowners must be paid to fairly compensate them for their property. Mr. Horton said a total of $1.6 million has already been deposited in an account for that purpose. The landowners will be also able to challenge the valuations in court.
While most conservatives lined up with the New London property owners, some who strictly adhere the original Constitution might well have sided with the city. As part of the Bill of Rights, the takings clause of the Constitution – which says private property shall not “be taken for public use without just compensation” – did not apply to states or local governments until the ratification of the 14th Amendment in 1868. In what may have been an intellectual dig at their conservative colleagues, the justices in the majority twice made note of that fact.